87R3268 KKR-F
By: Lucio S.B. No. 458
A BILL TO BE ENTITLED
AN ACT
relating to the Occupational Therapy Licensure Compact;
authorizing fees.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Chapter 454, Occupations Code, is amended by
adding Subchapter I to read as follows:
SUBCHAPTER I. OCCUPATIONAL THERAPY LICENSURE COMPACT
Sec. 454.401. OCCUPATIONAL THERAPY LICENSURE COMPACT. The
Occupational Therapy Licensure Compact is enacted and entered into
with all other jurisdictions that legally join in the compact,
which reads as follows:
OCCUPATIONAL THERAPY LICENSURE COMPACT
SECTION 1. PURPOSE
The purpose of this Compact is to facilitate interstate
practice of Occupational Therapy with the goal of improving public
access to Occupational Therapy services. The Practice of
Occupational Therapy occurs in the State where the patient/client
is located at the time of the patient/client encounter. The Compact
preserves the regulatory authority of States to protect public
health and safety through the current system of State licensure.
This Compact is designed to achieve the following objectives:
A. Increase public access to Occupational Therapy services
by providing for the mutual recognition of other Member State
licenses;
B. Enhance the States' ability to protect the public's
health and safety;
C. Encourage the cooperation of Member States in regulating
multi-State Occupational Therapy Practice;
D. Support spouses of relocating military members;
E. Enhance the exchange of licensure, investigative, and
disciplinary information between Member States;
F. Allow a Remote State to hold a provider of services with a
Compact Privilege in that State accountable to that State's
practice standards; and
G. Facilitate the use of Telehealth technology in order to
increase access to Occupational Therapy services.
SECTION 2. DEFINITIONS
As used in this Compact, and except as otherwise provided,
the following definitions shall apply:
A. "Active Duty Military" means full-time duty status in the
active uniformed service of the United States, including members of
the National Guard and Reserve on active duty orders pursuant to 10
U.S.C. Chapter 1209 and Section 1211.
B. "Adverse Action" means any administrative, civil,
equitable, or criminal action permitted by a State's laws which is
imposed by a Licensing Board or other authority against an
Occupational Therapist or Occupational Therapy Assistant,
including actions against an individual's license or Compact
Privilege such as censure, revocation, suspension, probation,
monitoring of the Licensee, or restriction on the Licensee's
practice.
C. "Alternative Program" means a non-disciplinary
monitoring process approved by an Occupational Therapy Licensing
Board.
D. "Compact Privilege" means the authorization, which is
equivalent to a license, granted by a Remote State to allow a
Licensee from another Member State to practice as an Occupational
Therapist or practice as an Occupational Therapy Assistant in the
Remote State under its laws and rules. The Practice of Occupational
Therapy occurs in the Member State where the patient/client is
located at the time of the patient/client encounter.
E. "Continuing Competence/Education" means a requirement,
as a condition of license renewal, to provide evidence of
participation in, and/or completion of, educational and
professional activities relevant to practice or area of work.
F. "Current Significant Investigative Information" means
Investigative Information that a Licensing Board, after an inquiry
or investigation that includes notification and an opportunity for
the Occupational Therapist or Occupational Therapy Assistant to
respond, if required by State law, has reason to believe is not
groundless and, if proved true, would indicate more than a minor
infraction.
G. "Data System" means a repository of information about
Licensees, including but not limited to license status,
Investigative Information, Compact Privileges, and Adverse
Actions.
H. "Encumbered License" means a license in which an Adverse
Action restricts the Practice of Occupational Therapy by the
Licensee or said Adverse Action has been reported to the National
Practitioners Data Bank (NPDB).
I. "Executive Committee" means a group of directors elected
or appointed to act on behalf of, and within the powers granted to
them by, the Commission.
J. "Home State" means the Member State that is the
Licensee's Primary State of Residence.
K. "Impaired Practitioner" means individuals whose
professional practice is adversely affected by substance abuse,
addiction, or other health-related conditions.
L. "Investigative Information" means information, records,
and/or documents received or generated by an Occupational Therapy
Licensing Board pursuant to an investigation.
M. "Jurisprudence Requirement" means the assessment of an
individual's knowledge of the laws and rules governing the Practice
of Occupational Therapy in a State.
N. "Licensee" means an individual who currently holds an
authorization from the State to practice as an Occupational
Therapist or as an Occupational Therapy Assistant.
O. "Member State" means a State that has enacted the
Compact.
P. "Occupational Therapist" means an individual who is
licensed by a State to practice Occupational Therapy.
Q. "Occupational Therapy Assistant" means an individual who
is licensed by a State to assist in the Practice of Occupational
Therapy.
R. "Occupational Therapy," "Occupational Therapy
Practice," and the "Practice of Occupational Therapy" mean the care
and services provided by an Occupational Therapist or an
Occupational Therapy Assistant as set forth in the Member State's
statutes and regulations.
S. "Occupational Therapy Compact Commission" or
"Commission" means the national administrative body whose
membership consists of all States that have enacted the Compact.
T. "Occupational Therapy Licensing Board" or "Licensing
Board" means the agency of a State that is authorized to license and
regulate Occupational Therapists and Occupational Therapy
Assistants.
U. "Primary State of Residence" means the state (also known
as the Home State) in which an Occupational Therapist or
Occupational Therapy Assistant who is not Active Duty Military
declares a primary residence for legal purposes as verified by:
driver's license, federal income tax return, lease, deed, mortgage
or voter registration or other verifying documentation as further
defined by Commission Rules.
V. "Remote State" means a Member State other than the Home
State, where a Licensee is exercising or seeking to exercise the
Compact Privilege.
W. "Rule" means a regulation promulgated by the Commission
that has the force of law.
X. "State" means any state, commonwealth, district, or
territory of the United States of America that regulates the
Practice of Occupational Therapy.
Y. "Single-State License" means an Occupational Therapist
or Occupational Therapy Assistant license issued by a Member State
that authorizes practice only within the issuing State and does not
include a Compact Privilege in any other Member State.
Z. "Telehealth" means the application of telecommunication
technology to deliver Occupational Therapy services for
assessment, intervention and/or consultation.
SECTION 3. STATE PARTICIPATION IN THE COMPACT
A. To participate in the Compact, a Member State shall:
1. License Occupational Therapists and Occupational
Therapy Assistants
2. Participate fully in the Commission's Data System,
including but not limited to using the Commission's unique
identifier as defined in Rules of the Commission;
3. Have a mechanism in place for receiving and
investigating complaints about Licensees;
4. Notify the Commission, in compliance with the terms
of the Compact and Rules, of any Adverse Action or the availability
of Investigative Information regarding a Licensee;
5. Implement or utilize procedures for considering the
criminal history records of applicants for an initial Compact
Privilege. These procedures shall include the submission of
fingerprints or other biometric-based information by applicants
for the purpose of obtaining an applicant's criminal history record
information from the Federal Bureau of Investigation and the agency
responsible for retaining that State's criminal records;
a. A Member State shall, within a time frame
established by the Commission, require a criminal background check
for a Licensee seeking/applying for a Compact Privilege whose
Primary State of Residence is that Member State, by receiving the
results of the Federal Bureau of Investigation criminal record
search, and shall use the results in making licensure decisions.
b. Communication between a Member State, the
Commission and among Member States regarding the verification of
eligibility for licensure through the Compact shall not include any
information received from the Federal Bureau of Investigation
relating to a federal criminal records check performed by a Member
State under Public Law 92-544.
6. Comply with the Rules of the Commission;
7. Utilize only a recognized national examination as a
requirement for licensure pursuant to the Rules of the Commission;
and
8. Have Continuing Competence/Education requirements
as a condition for license renewal.
B. A Member State shall grant the Compact Privilege to a
Licensee holding a valid unencumbered license in another Member
State in accordance with the terms of the Compact and Rules.
C. Member States may charge a fee for granting a Compact
Privilege.
D. A Member State shall provide for the State's delegate to
attend all Occupational Therapy Compact Commission meetings.
E. Individuals not residing in a Member State shall continue
to be able to apply for a Member State's Single-State License as
provided under the laws of each Member State. However, the
Single-State License granted to these individuals shall not be
recognized as granting the Compact Privilege in any other Member
State.
F. Nothing in this Compact shall affect the requirements
established by a Member State for the issuance of a Single-State
License.
SECTION 4. COMPACT PRIVILEGE
A. To exercise the Compact Privilege under the terms and
provisions of the Compact, the Licensee shall:
1. Hold a license in the Home State;
2. Have a valid United States Social Security Number
or National Practitioner Identification number;
3. Have no encumbrance on any State license;
4. Be eligible for a Compact Privilege in any Member
State in accordance with Section 4D, F, G, and H;
5. Have paid all fines and completed all requirements
resulting from any Adverse Action against any license or Compact
Privilege, and two years have elapsed from the date of such
completion;
6. Notify the Commission that the Licensee is seeking
the Compact Privilege within a Remote State(s);
7. Pay any applicable fees, including any State fee,
for the Compact Privilege;
8. Complete a criminal background check in accordance
with Section 3A(5);
a. The Licensee shall be responsible for the
payment of any fee associated with the completion of a criminal
background check.
9. Meet any Jurisprudence Requirements established by
the Remote State(s) in which the Licensee is seeking a Compact
Privilege; and
10. Report to the Commission Adverse Action taken by
any non-Member State within 30 days from the date the Adverse Action
is taken.
B. The Compact Privilege is valid until the expiration date
of the Home State license. The Licensee must comply with the
requirements of Section 4A to maintain the Compact Privilege in the
Remote State.
C. A Licensee providing Occupational Therapy in a Remote
State under the Compact Privilege shall function within the laws
and regulations of the Remote State.
D. Occupational Therapy Assistants practicing in a Remote
State shall be supervised by an Occupational Therapist licensed or
holding a Compact Privilege in that Remote State.
E. A Licensee providing Occupational Therapy in a Remote
State is subject to that State's regulatory authority. A Remote
State may, in accordance with due process and that State's laws,
remove a Licensee's Compact Privilege in the Remote State for a
specific period of time, impose fines, and/or take any other
necessary actions to protect the health and safety of its citizens.
The Licensee may be ineligible for a Compact Privilege in any State
until the specific time for removal has passed and all fines are
paid.
F. If a Home State license is encumbered, the Licensee shall
lose the Compact Privilege in any Remote State until the following
occur:
1. The Home State license is no longer encumbered; and
2. Two years have elapsed from the date on which the
Home State license is no longer encumbered in accordance with
Section 4(F)(1).
G. Once an Encumbered License in the Home State is restored
to good standing, the Licensee must meet the requirements of
Section 4A to obtain a Compact Privilege in any Remote State.
H. If a Licensee's Compact Privilege in any Remote State is
removed, the individual may lose the Compact Privilege in any other
Remote State until the following occur:
1. The specific period of time for which the Compact
Privilege was removed has ended;
2. All fines have been paid and all conditions have
been met;
3. Two years have elapsed from the date of completing
requirements for 4(H)(1) and (2); and
4. The Compact Privileges are reinstated by the
Commission, and the compact Data System is updated to reflect
reinstatement.
I. If a Licensee's Compact Privilege in any Remote State is
removed due to an erroneous charge, privileges shall be restored
through the compact Data System.
J. Once the requirements of Section 4H have been met, the
license must meet the requirements in Section 4A to obtain a Compact
Privilege in a Remote State.
SECTION 5: OBTAINING A NEW HOME STATE LICENSE BY VIRTUE OF COMPACT
PRIVILEGE
A. An Occupational Therapist or Occupational Therapy
Assistant may hold a Home State license, which allows for Compact
Privileges in Member States, in only one Member State at a time.
B. If an Occupational Therapist or Occupational Therapy
Assistant changes Primary State of Residence by moving between two
Member States:
1. The Occupational Therapist or Occupational Therapy
Assistant shall file an application for obtaining a new Home State
license by virtue of a Compact Privilege, pay all applicable fees,
and notify the current and new Home State in accordance with
applicable Rules adopted by the Commission.
2. Upon receipt of an application for obtaining a new
Home State license by virtue of compact privilege, the new Home
State shall verify that the Occupational Therapist or Occupational
Therapy Assistant meets the pertinent criteria outlined in Section
4 via the Data System, without need for primary source verification
except for:
a. an FBI fingerprint based criminal background
check if not previously performed or updated pursuant to applicable
Rules adopted by the Commission in accordance with Public Law
92-544;
b. other criminal background check as required by
the new Home State; and
c. submission of any requisite Jurisprudence
Requirements of the new Home State.
3. The former Home State shall convert the former Home
State license into a Compact Privilege once the new Home State has
activated the new Home State license in accordance with applicable
Rules adopted by the Commission.
4. Notwithstanding any other provision of this
Compact, if the Occupational Therapist or Occupational Therapy
Assistant cannot meet the criteria in Section 4, the new Home State
shall apply its requirements for issuing a new Single-State
License.
5. The Occupational Therapist or the Occupational
Therapy Assistant shall pay all applicable fees to the new Home
State in order to be issued a new Home State license.
C. If an Occupational Therapist or Occupational Therapy
Assistant changes Primary State of Residence by moving from a
Member State to a non-Member State, or from a non-Member State to a
Member State, the State criteria shall apply for issuance of a
Single-State License in the new State.
D. Nothing in this compact shall interfere with a Licensee's
ability to hold a Single-State License in multiple States; however,
for the purposes of this compact, a Licensee shall have only one
Home State license.
E. Nothing in this Compact shall affect the requirements
established by a Member State for the issuance of a Single-State
License.
SECTION 6. ACTIVE DUTY MILITARY PERSONNEL OR THEIR SPOUSES
A. Active Duty Military personnel, or their spouses, shall
designate a Home State where the individual has a current license in
good standing. The individual may retain the Home State designation
during the period the service member is on active duty. Subsequent
to designating a Home State, the individual shall only change their
Home State through application for licensure in the new State or
through the process described in Section 5.
SECTION 7. ADVERSE ACTIONS
A. A Home State shall have exclusive power to impose Adverse
Action against an Occupational Therapist's or Occupational Therapy
Assistant's license issued by the Home State.
B. In addition to the other powers conferred by State law, a
Remote State shall have the authority, in accordance with existing
State due process law, to:
1. Take Adverse Action against an Occupational
Therapist's or Occupational Therapy Assistant's Compact Privilege
within that Member State.
2. Issue subpoenas for both hearings and
investigations that require the attendance and testimony of
witnesses as well as the production of evidence. Subpoenas issued
by a Licensing Board in a Member State for the attendance and
testimony of witnesses or the production of evidence from another
Member State shall be enforced in the latter State by any court of
competent jurisdiction, according to the practice and procedure of
that court applicable to subpoenas issued in proceedings pending
before it. The issuing authority shall pay any witness fees, travel
expenses, mileage and other fees required by the service statutes
of the State in which the witnesses or evidence are located.
C. For purposes of taking Adverse Action, the Home State
shall give the same priority and effect to reported conduct
received from a Member State as it would if the conduct had occurred
within the Home State. In so doing, the Home State shall apply its
own State laws to determine appropriate action.
D. The Home State shall complete any pending investigations
of an Occupational Therapist or Occupational Therapy Assistant who
changes Primary State of Residence during the course of the
investigations. The Home State, where the investigations were
initiated, shall also have the authority to take appropriate
action(s) and shall promptly report the conclusions of the
investigations to the OT Compact Commission Data System. The
Occupational Therapy Compact Commission Data System administrator
shall promptly notify the new Home State of any Adverse Actions.
E. A Member State, if otherwise permitted by State law, may
recover from the affected Occupational Therapist or Occupational
Therapy Assistant the costs of investigations and disposition of
cases resulting from any Adverse Action taken against that
Occupational Therapist or Occupational Therapy Assistant.
F. A Member State may take Adverse Action based on the
factual findings of the Remote State, provided that the Member
State follows its own procedures for taking the Adverse Action.
G. Joint Investigations
1. In addition to the authority granted to a Member
State by its respective State Occupational Therapy laws and
regulations or other applicable State law, any Member State may
participate with other Member States in joint investigations of
Licensees.
2. Member States shall share any investigative,
litigation, or compliance materials in furtherance of any joint or
individual investigation initiated under the Compact.
H. If an Adverse Action is taken by the Home State against an
Occupational Therapist's or Occupational Therapy Assistant's
license, the Occupational Therapist's or Occupational Therapy
Assistant's Compact Privilege in all other Member States shall be
deactivated until all encumbrances have been removed from the State
license. All Home State disciplinary orders that impose Adverse
Action against an Occupational Therapist's or Occupational Therapy
Assistant's license shall include a Statement that the Occupational
Therapist's or Occupational Therapy Assistant's Compact Privilege
is deactivated in all Member States during the pendency of the
order.
I. If a Member State takes Adverse Action, it shall promptly
notify the administrator of the Data System. The administrator of
the Data System shall promptly notify the Home State of any Adverse
Actions by Remote States.
J. Nothing in this Compact shall override a Member State's
decision that participation in an Alternative Program may be used
in lieu of Adverse Action.
SECTION 8. ESTABLISHMENT OF THE OCCUPATIONAL THERAPY COMPACT
COMMISSION.
A. The Compact Member States hereby create and establish a
joint public agency known as the Occupational Therapy Compact
Commission:
1. The Commission is an instrumentality of the Compact
States.
2. Venue is proper and judicial proceedings by or
against the Commission shall be brought solely and exclusively in a
court of competent jurisdiction where the principal office of the
Commission is located. The Commission may waive venue and
jurisdictional defenses to the extent it adopts or consents to
participate in alternative dispute resolution proceedings.
3. Nothing in this Compact shall be construed to be a
waiver of sovereign immunity.
B. Membership, Voting, and Meetings
1. Each Member State shall have and be limited to one
(1) delegate selected by that Member State's Licensing Board.
2. The delegate shall be either:
a. A current member of the Licensing Board, who
is an Occupational Therapist, Occupational Therapy Assistant, or
public member; or
b. An administrator of the Licensing Board.
3. Any delegate may be removed or suspended from
office as provided by the law of the State from which the delegate
is appointed.
4. The Member State board shall fill any vacancy
occurring in the Commission within 90 days.
5. Each delegate shall be entitled to one (1) vote with
regard to the promulgation of Rules and creation of bylaws and shall
otherwise have an opportunity to participate in the business and
affairs of the Commission. A delegate shall vote in person or by
such other means as provided in the bylaws. The bylaws may provide
for delegates' participation in meetings by telephone or other
means of communication.
6. The Commission shall meet at least once during each
calendar year. Additional meetings shall be held as set forth in the
bylaws.
7. The Commission shall establish by Rule a term of
office for delegates.
C. The Commission shall have the following powers and
duties:
1. Establish a Code of Ethics for the Commission;
2. Establish the fiscal year of the Commission;
3. Establish bylaws;
4. Maintain its financial records in accordance with
the bylaws;
5. Meet and take such actions as are consistent with
the provisions of this Compact and the bylaws;
6. Promulgate uniform Rules to facilitate and
coordinate implementation and administration of this Compact. The
Rules shall have the force and effect of law and shall be binding in
all Member States;
7. Bring and prosecute legal proceedings or actions in
the name of the Commission, provided that the standing of any State
Occupational Therapy Licensing Board to sue or be sued under
applicable law shall not be affected;
8. Purchase and maintain insurance and bonds;
9. Borrow, accept, or contract for services of
personnel, including, but not limited to, employees of a Member
State;
10. Hire employees, elect or appoint officers, fix
compensation, define duties, grant such individuals appropriate
authority to carry out the purposes of the Compact, and establish
the Commission's personnel policies and programs relating to
conflicts of interest, qualifications of personnel, and other
related personnel matters;
11. Accept any and all appropriate donations and
grants of money, equipment, supplies, materials and services, and
receive, utilize and dispose of the same; provided that at all times
the Commission shall avoid any appearance of impropriety and/or
conflict of interest;
12. Lease, purchase, accept appropriate gifts or
donations of, or otherwise own, hold, improve or use, any property,
real, personal or mixed; provided that at all times the Commission
shall avoid any appearance of impropriety;
13. Sell, convey, mortgage, pledge, lease, exchange,
abandon, or otherwise dispose of any property real, personal, or
mixed;
14. Establish a budget and make expenditures;
15. Borrow money;
16. Appoint committees, including standing committees
composed of members, State regulators, State legislators or their
representatives, and consumer representatives, and such other
interested persons as may be designated in this Compact and the
bylaws;
17. Provide and receive information from, and
cooperate with, law enforcement agencies;
18. Establish and elect an Executive Committee; and
19. Perform such other functions as may be necessary
or appropriate to achieve the purposes of this Compact consistent
with the State regulation of Occupational Therapy licensure and
practice.
D. The Executive Committee
The Executive Committee shall have the power to act on behalf of the
Commission according to the terms of this Compact.
1. The Executive Committee shall be composed of nine
members:
a. Seven voting members who are elected by the
Commission from the current membership of the Commission;
b. One ex-officio, nonvoting member from a
recognized national Occupational Therapy professional association;
and
c. One ex-officio, nonvoting member from a
recognized national Occupational Therapy certification
organization.
2. The ex-officio members will be selected by their
respective organizations.
3. The Commission may remove any member of the
Executive Committee as provided in bylaws.
4. The Executive Committee shall meet at least
annually.
5. The Executive Committee shall have the following
Duties and responsibilities:
a. Recommend to the entire Commission changes to
the Rules or bylaws, changes to this Compact legislation, fees paid
by Compact Member States such as annual dues, and any Commission
Compact fee charged to Licensees for the Compact Privilege;
b. Ensure Compact administration services are
appropriately provided, contractual or otherwise;
c. Prepare and recommend the budget;
d. Maintain financial records on behalf of the
Commission;
e. Monitor Compact compliance of Member States
and provide compliance reports to the Commission;
f. Establish additional committees as necessary;
and
g. Perform other duties as provided in Rules or
bylaws.
E. Meetings of the Commission
1. All meetings shall be open to the public, and public
notice of meetings shall be given in the same manner as required
under the Rulemaking provisions in Section 10.
2. The Commission or the Executive Committee or other
committees of the Commission may convene in a closed, non-public
meeting if the Commission or Executive Committee or other
committees of the Commission must discuss:
a. Non-compliance of a Member State with its
obligations under the Compact;
b. The employment, compensation, discipline or
other matters, practices or procedures related to specific
employees or other matters related to the Commission's internal
personnel practices and procedures;
c. Current, threatened, or reasonably
anticipated litigation;
d. Negotiation of contracts for the purchase,
lease, or sale of goods, services, or real estate;
e. Accusing any person of a crime or formally
censuring any person;
f. Disclosure of trade secrets or commercial or
financial information that is privileged or confidential;
g. Disclosure of information of a personal nature
where disclosure would constitute a clearly unwarranted invasion of
personal privacy;
h. Disclosure of investigative records compiled
for law enforcement purposes;
i. Disclosure of information related to any
investigative reports prepared by or on behalf of or for use of the
Commission or other committee charged with responsibility of
investigation or determination of compliance issues pursuant to the
Compact; or
j. Matters specifically exempted from disclosure
by federal or Member State statute.
3. If a meeting, or portion of a meeting, is closed
pursuant to this provision, the Commission's legal counsel or
designee shall certify that the meeting may be closed and shall
reference each relevant exempting provision.
4. The Commission shall keep minutes that fully and
clearly describe all matters discussed in a meeting and shall
provide a full and accurate summary of actions taken, and the
reasons therefore, including a description of the views expressed.
All documents considered in connection with an action shall be
identified in such minutes. All minutes and documents of a closed
meeting shall remain under seal, subject to release by a majority
vote of the Commission or order of a court of competent
jurisdiction.
F. Financing of the Commission
1. The Commission shall pay, or provide for the
payment of, the reasonable expenses of its establishment,
organization, and ongoing activities.
2. The Commission may accept any and all appropriate
revenue sources, donations, and grants of money, equipment,
supplies, materials, and services.
3. The Commission may levy on and collect an annual
assessment from each Member State or impose fees on other parties to
cover the cost of the operations and activities of the Commission
and its staff, which must be in a total amount sufficient to cover
its annual budget as approved by the Commission each year for which
revenue is not provided by other sources. The aggregate annual
assessment amount shall be allocated based upon a formula to be
determined by the Commission, which shall promulgate a Rule binding
upon all Member States.
4. The Commission shall not incur obligations of any
kind prior to securing the funds adequate to meet the same; nor
shall the Commission pledge the credit of any of the Member States,
except by and with the authority of the Member State.
5. The Commission shall keep accurate accounts of all
receipts and disbursements. The receipts and disbursements of the
Commission shall be subject to the audit and accounting procedures
established under its bylaws. However, all receipts and
disbursements of funds handled by the Commission shall be audited
yearly by a certified or licensed public accountant, and the report
of the audit shall be included in and become part of the annual
report of the Commission.
G. Qualified Immunity, Defense, and Indemnification
1. The members, officers, executive director,
employees and representatives of the Commission shall be immune
from suit and liability, either personally or in their official
capacity, for any claim for damage to or loss of property or
personal injury or other civil liability caused by or arising out of
any actual or alleged act, error or omission that occurred, or that
the person against whom the claim is made had a reasonable basis for
believing occurred within the scope of Commission employment,
duties or responsibilities; provided that nothing in this paragraph
shall be construed to protect any such person from suit and/or
liability for any damage, loss, injury, or liability caused by the
intentional or willful or wanton misconduct of that person.
2. The Commission shall defend any member, officer,
executive director, employee, or representative of the Commission
in any civil action seeking to impose liability arising out of any
actual or alleged act, error, or omission that occurred within the
scope of Commission employment, duties, or responsibilities, or
that the person against whom the claim is made had a reasonable
basis for believing occurred within the scope of Commission
employment, duties, or responsibilities; provided that nothing
herein shall be construed to prohibit that person from retaining
his or her own counsel; and provided further, that the actual or
alleged act, error, or omission did not result from that person's
intentional or willful or wanton misconduct.
3. The Commission shall indemnify and hold harmless
any member, officer, executive director, employee, or
representative of the Commission for the amount of any settlement
or judgment obtained against that person arising out of any actual
or alleged act, error or omission that occurred within the scope of
Commission employment, duties, or responsibilities, or that such
person had a reasonable basis for believing occurred within the
scope of Commission employment, duties, or responsibilities,
provided that the actual or alleged act, error, or omission did not
result from the intentional or willful or wanton misconduct of that
person.
SECTION 9. DATA SYSTEM
A. The Commission shall provide for the development,
maintenance, and utilization of a coordinated database and
reporting system containing licensure, Adverse Action, and
Investigative Information on all licensed individuals in Member
States.
B. A Member State shall submit a uniform data set to the Data
System on all individuals to whom this Compact is applicable
(utilizing a unique identifier) as required by the Rules of the
Commission, including:
1. Identifying information;
2. Licensure data;
3. Adverse Actions against a license or Compact
Privilege;
4. Non-confidential information related to
Alternative Program participation;
5. Any denial of application for licensure, and the
reason(s) for such denial;
6. Other information that may facilitate the
administration of this Compact, as determined by the Rules of the
Commission; and
7. Current Significant Investigative Information.
C. Current Significant Investigative Information and other
Investigative Information pertaining to a Licensee in any Member
State will only be available to other Member States.
D. The Commission shall promptly notify all Member States of
any Adverse Action taken against a Licensee or an individual
applying for a license. Adverse Action information pertaining to a
Licensee in any Member State will be available to any other Member
State.
E. Member States contributing information to the Data
System may designate information that may not be shared with the
public without the express permission of the contributing State.
F. Any information submitted to the Data System that is
subsequently required to be expunged by the laws of the Member State
contributing the information shall be removed from the Data System.
SECTION 10. RULEMAKING
A. The Commission shall exercise its Rulemaking powers
pursuant to the criteria set forth in this Section and the Rules
adopted thereunder. Rules and amendments shall become binding as of
the date specified in each Rule or amendment.
B. The Commission shall promulgate reasonable rules in
order to effectively and efficiently achieve the purposes of the
Compact. Notwithstanding the foregoing, in the event the Commission
exercises its rulemaking authority in a manner that is beyond the
scope of the purposes of the Compact, or the powers granted
hereunder, then such an action by the Commission shall be invalid
and have no force and effect.
C. If a majority of the legislatures of the Member States
rejects a Rule, by enactment of a statute or resolution in the same
manner used to adopt the Compact within 4 years of the date of
adoption of the Rule, then such Rule shall have no further force and
effect in any Member State.
D. Rules or amendments to the Rules shall be adopted at a
regular or special meeting of the Commission.
E. Prior to promulgation and adoption of a final Rule or
Rules by the Commission, and at least thirty (30) days in advance of
the meeting at which the Rule will be considered and voted upon, the
Commission shall file a Notice of Proposed Rulemaking:
1. On the website of the Commission or other publicly
accessible platform; and
2. On the website of each Member State Occupational
Therapy Licensing Board or other publicly accessible platform or
the publication in which each State would otherwise publish
proposed Rules.
F. The Notice of Proposed Rulemaking shall include:
1. The proposed time, date, and location of the
meeting in which the Rule will be considered and voted upon;
2. The text of the proposed Rule or amendment and the
reason for the proposed Rule;
3. A request for comments on the proposed Rule from any
interested person; and
4. The manner in which interested persons may submit
notice to the Commission of their intention to attend the public
hearing and any written comments.
G. Prior to adoption of a proposed Rule, the Commission
shall allow persons to submit written data, facts, opinions, and
arguments, which shall be made available to the public.
H. The Commission shall grant an opportunity for a public
hearing before it adopts a Rule or amendment if a hearing is
requested by:
1. At least twenty five (25) persons;
2. A State or federal governmental subdivision or
agency; or
3. An association or organization having at least
twenty five (25) members.
I. If a hearing is held on the proposed Rule or amendment,
the Commission shall publish the place, time, and date of the
scheduled public hearing. If the hearing is held via electronic
means, the Commission shall publish the mechanism for access to the
electronic hearing.
1. All persons wishing to be heard at the hearing shall
notify the executive director of the Commission or other designated
member in writing of their desire to appear and testify at the
hearing not less than five (5) business days before the scheduled
date of the hearing.
2. Hearings shall be conducted in a manner providing
each person who wishes to comment a fair and reasonable opportunity
to comment orally or in writing.
3. All hearings will be recorded. A copy of the
recording will be made available on request.
4. Nothing in this section shall be construed as
requiring a separate hearing on each Rule. Rules may be grouped for
the convenience of the Commission at hearings required by this
section.
J. Following the scheduled hearing date, or by the close of
business on the scheduled hearing date if the hearing was not held,
the Commission shall consider all written and oral comments
received.
K. If no written notice of intent to attend the public
hearing by interested parties is received, the Commission may
proceed with promulgation of the proposed Rule without a public
hearing.
L. The Commission shall, by majority vote of all members,
take final action on the proposed Rule and shall determine the
effective date of the Rule, if any, based on the Rulemaking record
and the full text of the Rule.
M. Upon determination that an emergency exists, the
Commission may consider and adopt an emergency Rule without prior
notice, opportunity for comment, or hearing, provided that the
usual Rulemaking procedures provided in the Compact and in this
section shall be retroactively applied to the Rule as soon as
reasonably possible, in no event later than ninety (90) days after
the effective date of the Rule. For the purposes of this provision,
an emergency Rule is one that must be adopted immediately in order
to:
1. Meet an imminent threat to public health, safety,
or welfare;
2. Prevent a loss of Commission or Member State funds;
3. Meet a deadline for the promulgation of an
administrative Rule that is established by federal law or Rule; or
4. Protect public health and safety.
N. The Commission or an authorized committee of the
Commission may direct revisions to a previously adopted Rule or
amendment for purposes of correcting typographical errors, errors
in format, errors in consistency, or grammatical errors. Public
notice of any revisions shall be posted on the website of the
Commission. The revision shall be subject to challenge by any
person for a period of thirty (30) days after posting. The revision
may be challenged only on grounds that the revision results in a
material change to a Rule. A challenge shall be made in writing and
delivered to the chair of the Commission prior to the end of the
notice period. If no challenge is made, the revision will take
effect without further action. If the revision is challenged, the
revision may not take effect without the approval of the
Commission.
SECTION 11. OVERSIGHT, DISPUTE RESOLUTION, AND ENFORCEMENT
A. Oversight
1. The executive, legislative, and judicial branches
of State government in each Member State shall enforce this Compact
and take all actions necessary and appropriate to effectuate the
Compact's purposes and intent. The provisions of this Compact and
the Rules promulgated hereunder shall have standing as statutory
law.
2. All courts shall take judicial notice of the
Compact and the Rules in any judicial or administrative proceeding
in a Member State pertaining to the subject matter of this Compact
which may affect the powers, responsibilities, or actions of the
Commission.
3. The Commission shall be entitled to receive service
of process in any such proceeding, and shall have standing to
intervene in such a proceeding for all purposes. Failure to provide
service of process to the Commission shall render a judgment or
order void as to the Commission, this Compact, or promulgated
Rules.
B. Default, Technical Assistance, and Termination
1. If the Commission determines that a Member State
has defaulted in the performance of its obligations or
responsibilities under this Compact or the promulgated Rules, the
Commission shall:
a. Provide written notice to the defaulting State
and other Member States of the nature of the default, the proposed
means of curing the default and/or any other action to be taken by
the Commission; and
b. Provide remedial training and specific
technical assistance regarding the default.
2. If a State in default fails to cure the default, the
defaulting State may be terminated from the Compact upon an
affirmative vote of a majority of the Member States, and all rights,
privileges and benefits conferred by this Compact may be terminated
on the effective date of termination. A cure of the default does not
relieve the offending State of obligations or liabilities incurred
during the period of default.
3. Termination of membership in the Compact shall be
imposed only after all other means of securing compliance have been
exhausted. Notice of intent to suspend or terminate shall be given
by the Commission to the governor, the majority and minority
leaders of the defaulting State's legislature, and each of the
Member States.
4. A State that has been terminated is responsible for
all assessments, obligations, and liabilities incurred through the
effective date of termination, including obligations that extend
beyond the effective date of termination.
5. The Commission shall not bear any costs related to a
State that is found to be in default or that has been terminated
from the Compact, unless agreed upon in writing between the
Commission and the defaulting State.
6. The defaulting State may appeal the action of the
Commission by petitioning the U.S. District Court for the District
of Columbia or the federal district where the Commission has its
principal offices. The prevailing member shall be awarded all costs
of such litigation, including reasonable attorney's fees.
C. Dispute Resolution
1. Upon request by a Member State, the Commission
shall attempt to resolve disputes related to the Compact that arise
among Member States and between member and non-Member States.
2. The Commission shall promulgate a Rule providing
for both mediation and binding dispute resolution for disputes as
appropriate.
D. Enforcement
1. The Commission, in the reasonable exercise of its
discretion, shall enforce the provisions and Rules of this Compact.
2. By majority vote, the Commission may initiate legal
action in the United States District Court for the District of
Columbia or the federal district where the Commission has its
principal offices against a Member State in default to enforce
compliance with the provisions of the Compact and its promulgated
Rules and bylaws. The relief sought may include both injunctive
relief and damages. In the event judicial enforcement is necessary,
the prevailing member shall be awarded all costs of such
litigation, including reasonable attorney's fees.
3. The remedies herein shall not be the exclusive
remedies of the Commission. The Commission may pursue any other
remedies available under federal or State law.
SECTION 12. DATE OF IMPLEMENTATION OF THE INTERSTATE COMMISSION
FOR OCCUPATIONAL THERAPY PRACTICE AND ASSOCIATED RULES,
WITHDRAWAL, AND AMENDMENT
A. The Compact shall come into effect on the date on which
the Compact statute is enacted into law in the tenth Member State.
The provisions, which become effective at that time, shall be
limited to the powers granted to the Commission relating to
assembly and the promulgation of Rules. Thereafter, the Commission
shall meet and exercise Rulemaking powers necessary to the
implementation and administration of the Compact.
B. Any State that joins the Compact subsequent to the
Commission's initial adoption of the Rules shall be subject to the
Rules as they exist on the date on which the Compact becomes law in
that State. Any Rule that has been previously adopted by the
Commission shall have the full force and effect of law on the day
the Compact becomes law in that State.
C. Any Member State may withdraw from this Compact by
enacting a statute repealing the same.
1. A Member State's withdrawal shall not take effect
until six (6) months after enactment of the repealing statute.
2. Withdrawal shall not affect the continuing
requirement of the withdrawing State's Occupational Therapy
Licensing Board to comply with the investigative and Adverse Action
reporting requirements of this act prior to the effective date of
withdrawal.
D. Nothing contained in this Compact shall be construed to
invalidate or prevent any Occupational Therapy licensure agreement
or other cooperative arrangement between a Member State and a
non-Member State that does not conflict with the provisions of this
Compact.
E. This Compact may be amended by the Member States. No
amendment to this Compact shall become effective and binding upon
any Member State until it is enacted into the laws of all Member
States.
SECTION 13. CONSTRUCTION AND SEVERABILITY
This Compact shall be liberally construed so as to effectuate
the purposes thereof. The provisions of this Compact shall be
severable and if any phrase, clause, sentence or provision of this
Compact is declared to be contrary to the constitution of any Member
State or of the United States or the applicability thereof to any
government, agency, person, or circumstance is held invalid, the
validity of the remainder of this Compact and the applicability
thereof to any government, agency, person, or circumstance shall
not be affected thereby. If this Compact shall be held contrary to
the constitution of any Member State, the Compact shall remain in
full force and effect as to the remaining Member States and in full
force and effect as to the Member State affected as to all severable
matters.
SECTION 14. BINDING EFFECT OF COMPACT AND OTHER LAWS
A. A Licensee providing Occupational Therapy in a Remote
State under the Compact Privilege shall function within the laws
and regulations of the Remote State.
B. Nothing herein prevents the enforcement of any other law
of a Member State that is not inconsistent with the Compact.
C. Any laws in a Member State in conflict with the Compact
are superseded to the extent of the conflict.
D. Any lawful actions of the Commission, including all Rules
and bylaws promulgated by the Commission, are binding upon the
Member States.
E. All agreements between the Commission and the Member
States are binding in accordance with their terms.
F. In the event any provision of the Compact exceeds the
constitutional limits imposed on the legislature of any Member
State, the provision shall be ineffective to the extent of the
conflict with the constitutional provision in question in that
Member State.
Sec. 454.402. ADMINISTRATION OF COMPACT. The board is the
Occupational Therapy Licensure Compact administrator for this
state.
Sec. 454.403. RULES. The board may adopt rules necessary to
implement this subchapter.
SECTION 2. This Act takes effect September 1, 2021.